Terms & Conditions

General Terms and Conditions of Sale and Delivery for Hardware and Software.

1. Validity of the general terms and conditions of the SilverCreations Software AG

These general terms and conditions of sale and delivery apply to all completed contracts between the company and the customer, as well as all other agreements, which are met within the business connection. Deviations of the general terms and conditions with respect to dealers or distributors on the one hand, and customers that are consumers within the meaning of civil code (private customers) on the other, are denoted in the respective places. General terms and conditions of the customer are explicitly not part of the contract, even if they are being implicitly contradicted on the company’s behalf. On the off chance that the customer does not want the following general terms and conditions for sale and delivery to be held, they need to have already advised this to the company in written form.

2. Conditions of Payment and Costs

All invoices are due within 14 days starting from the invoice date. Deviations thereof are only valid, once they have been agreed upon in written form. The date of payment receipt is determined by the company. In the event of delay the company has the right to hold back further deliveries and goods and services. By defaults in payment by the customer, the company is entitled to charge 5% interest on top the current applicable base interest rate. All costs that are mentioned in respect to handlers and distributors are plus the current applicable legal sales tax. The mention of price in regard to customers, which are consumers within the meaning of civil code (private customers), are inclusive of the legal sales tax. The company has the right to carry out part-deliveries.

3. Delivery and Shipment

All offers are subject to change. Delivery only takes place, as long as stock is available. All delivery dates mentioned by the company are non-binding, unless a delivery date is explicitly binding by agreement in writing. If, after placing an order, the purchaser changes or makes additions to the order or other circumstances arise, which make the company’s adherence to the delivery date no longer possible, notwithstanding that the company has no responsibility for these circumstances, the delivery will be postponed to another suitable period. If the company is prevented from fulfilling a contract punctually, e.g. through acquirement, manufacturing or delivery disruptions by its subcontractor(s), then the general legal principles apply, with the proviso that the customer can place a grace period of six weeks after the end of one month. If the noncompliance of a binding delivery date is verifiably due to mobilisation, war, riots, strikes, or lockouts or other circumstances, which according to the principles of law cannot be held responsible by the company, the delivery deadline shall be reasonably extended. The customer can withdraw from the agreement, if they place a reasonable deadline with the company after the expiry of the extended deadline. The withdrawal must be made in writing, if the company doesn’t fulfil with the extended period. If it is impossible for the company to partially or completely fulfil the contract due to the reasons mentioned- above, it shall be free from its delivery obligation.

The costs for delivery and transportation insurance are fundamentally covered by the customer, whereby the choice of dispatch route and type are of the company’s own discretion. The customer is obliged to inspect goods on arrival straight away for recognisable signs of transport damage as well as any type of damage to the packaging and report them immediately in writing to the company. This applies also to hidden damages. If the company loses their claims in regard to the insurance or subcontractor due to the failure of this obligation, the customer shall be liable for the full costs, which result from this failure of obligation. The risk passes over to the customer, as soon as the goods leave the factory or company site.

4. Reservation of Ownership

The delivered goods remain in main and minor matters property of the company until full payment of all company claims from the business connection with the customer has been received. The customer is obliged to properly insure the items (i.e. theft, fire, water, low-voltage current insurance) still under the company’s reservation of ownership and to show such proof to the company upon request. In the event of damage the customer’s insurance claim shall be assigned to the company. The customer is not authorised to dispose the items under reservation of ownership. The customer is to inform the company immediately in writing in the event of attachments or seizures and appropriately make third parties aware of the company’s reservation of ownership. In the case, that the customer still sells the delivered goods and the company permits this, the customer relinquishes - already with completion of the contract - all claims against the purchaser to the company. The customer is obliged to surrender all necessary information as to the assertion of these rights to the company and to perform any necessary acts of cooperation.

5. Limitation of Liability

The company shall be liable for intent or gross negligence according to legal regulations. By light negligence the company is only liable, if an essential contractual obligation (cardinal’s duty) has been infringed or a case of default or impossibility exists. In the case of a light negligence, this liability shall be limited in such damages that are foreseeable or typical. A liability regarding lack of guaranteed properties, because of fraud, personal injuries and defects of title under the German Product Liability Law and the German Federal Data Protection Act remain unaffected.

In the event that a claim is made against the company due to warranty or liability, a contributory negligence of the customer shall be regarded as appropriate, especially where insufficient notification of malfunctions or insufficient data protection is involved. Insufficient data protection applies when the customer has neglected to meet precaution in ensuring suitable safeguards against exposures to the outside appropriate to the latest technology, especially against computer viruses and other phenomena that could endanger or damage single data or collective amounts of data.

6. Warranty for Hardware

The company guarantees, that the items are not deficient in any way that would reduce or void the value or capability of normal use or required use according to the contract.

The company and the customer are in agreement, that no assurance of certain properties are depicted in the manual and/or in the explanations and descriptions offered in the price list as well as either hardware or software.

The Warranty with respect to dealers/distributors usually is 6 months and begins with the day of delivery. Longer extended warranty periods are dependant of each respective product and must be agreed upon separately in written form. If the customer is a consumer in the sense of the German Civil Code, the warranty has a 2 year warranty period. If modification to the hardware by the dealer/distributor has been undertaken, they have to independently carry the respective warranty obligations, in regard to their customers; a warranty of the company is not applicable in this case. Special arrangements concerning the warranty period and relating to modifications through the dealer/distributor must be arranged separately in written form, so that deviations from these terms and conditions attain validity. Regarding defects within the warranty period, the customer must immediately inform the company in written form. The warranty does not include removal of defects that are created through normal wear and tear, external influences or faulty operation. The warranty is inapplicable so far as the customer makes self-changes or allows third parties to alter devices, elements or auxiliary equipment without permission of the company, unless the customer has complete proof, that the remaining defects in question have neither totally nor partly been caused by such changes and that the removal of defects will not be complicated through these changes.

If the notice of defects proves as eligible, the customer sets the company an adequate period for supplementary performance. The customer informs the company, what type of supplementary performance – improvement of the delivered or delivery of a new, defect-free item – they wish. The company is still entitled to refuse the chosen supplementary performance, if this can only be completed with disproportionate costs for them, and if the other type of supplementary performance would bring no substantial disadvantages for the customer with it. The company can furthermore totally refuse the supplementary performance, if they can only achieve this through disproportionate costs for them.

For implementation of supplementary performance for the same or directly linked defect, the company is provided 2 attempts within the set period defined by the customer. After the second failed attempt, the customer can withdraw from the contract or reduce the purchase price. The right to withdraw or to reduce price may be exercised after the first failed attempt at supplementary performance, if the second attempt cannot be expected within the set period of the customer. If the subsequent performance is refused under the above conditions, the customer is immediately entitled to withdraw from the contract or make a price reduction.

A withdrawal due to a negligible defect is excluded.

If the customer has engaged the company in regard to warranty and it becomes apparent, that either no defect exists or the applicable made-defect is not obliged to be covered by warranty by the company, the customer must reimburse the company for any and all expenses incurred by the company, inasmuch as they are responsible for negligently or deliberately making a claim against the company.

The delivery of a user manual in English is permissible, if the contractual item is still not completely localised for the respective market. The same applies when the contractual item is generally only deliverable in the English version.

7. Warranty for Software

The customer shall examine the software directly after delivery and shall immediately inform the seller in writing of any obvious faults.

The company warrants in respect to handlers/distributors for a time period of 6 months (beginning with the day of delivery), that the software in regard to its functionality essentially corresponds to the program description and the accompanying text materials. If alterations were made through the handler/distributor to the software, they are themselves essentially responsible for the warranty period in respect to their customers. A warranty claim to the company is inapplicable in this case. If the customer is a consumer in the sense of the German Civil Code, the warranty has a 2 year warranty period.

If a defect emerges, the defect is to be written in a notice of defects and its form of appearance is to be described in an exact way, that an examination of the defect (e.g. a submittal of fault reports) is viable and an exclusion of a faulty operation (e.g. statement of the working steps) can be ruled out.

If the notice of defects proves as eligible, the customer sets the company an adequate period for supplementary performance. The customer notifies the company what kind of subsequent performance of contract they prefer, either through improvement of the delivered item or delivery of a new defect-free product. The company is still entitled to refuse the chosen supplementary performance, if this can only be completed with disproportionate costs for them, and if the other type of supplementary performance would bring no substantial disadvantages for the customer with it. The company can furthermore totally refuse the supplementary performance, if they can only achieve this through disproportionate costs for them. For implementation of supplementary performance for the same or directly linked defect, the company is provided 2 attempts within the set period defined by the customer. After the second failed attempt, the customer can withdraw from the contract or reduce the purchase price. The right to withdraw or to reduce price may be exercised after the first failed attempt at supplementary performance, if the second attempt cannot be expected within the set period of the customer. If the subsequent performance is refused under the above conditions, the customer is immediately entitled to withdraw from the contract or make a price reduction.

A withdrawal due to a negligible defect is excluded.

If the customer has engaged the company in regard to warranty and it becomes apparent, that either no defect exists or the applicable made-defect is not obliged to be covered by warranty by the company, the customer must reimburse the company for any and all expenses incurred by the company, inasmuch as they are responsible for negligently or deliberately making a claim against the company.

No liability shall be assumed with regard to the suitability of the software for the customer’s objectives and its compatibility with the software already present.

The delivery of the following will only then be owed, if this is explicitly agreed upon in writing between the parties: User manuals and documentation about the written material/program description delivered with the software and the user guide implemented in the Software and/or online helper or furthermore a referral.

The delivery of a user manual in English is permissible, if the contractual item is still not completely localised for the respective market. The same applies when the contractual item is generally only deliverable in the English version.

8. Confidentiality

The company and the customer are obliged to each other to keep all company secrets private both ways and not to disclose this information to third parties in any way. The details, graphics and other information, that the other contract partner receives, based on the business relationship, can only be used in context of the respective contractual purpose.

9. Evidence Clause

Data which is stored in electronic registers or in other electronic form and saved by the company is valid as acceptable evidence as proof of data transfers, contracts and completed payments between the parties.

10. Trade Mark Rights

Without explicit permission of the company, the purchaser is not allowed to export the products bought from the company into countries outside the EC. Besides this, the purchaser has to observe all relevant export regulations, in particular those which follow the external trade regulations as well as regulations corresponding to the US right if necessary.

11. Export

The buyer recognises, that resale of any products imported from the USA are subject to USA export control regulations, which limit the export and re-importation of hardware, software, technical data carriers and direct products of technical data carriers including services, which stand in connection with the use of these products. The purchaser agrees, that they export or distribute neither directly nor indirectly imported products, information or documentations from the USA, which stand in connection with this, into any countries or to ultimate purchasers, without requesting necessary allowance from the responsible authority. Necessary is the agreement of the American “Department of Commerce” department for the administration of export affairs, or a comparable institution. The same applies to all applications of the user, which are limited by US regulations. These regulations refer in particular to:

Countries, for which limitations apply:

Cuba, Haiti, the remains of Yugoslavia, (Serbia and Montenegro), Iran, Iraq, North Korea, Syria and Vietnam.

End users, for which limitations apply:

all ultimate purchasers, from which the purchaser knows or from ultimate purchasers that have the justified assumption, that the products, which were imported from the USA, are used for the draft, development or production of rockets and/or in the rocket technology, in connection with nuclear weapons or with chemical and biological weapons;

Final consumption, for which limitations apply:

Any use of products which were imported from the USA in connection with the draft, development or production of rockets and/or the rocket technology, in connection with nuclear weapons or the weapon technology or for chemical and biological weapons.

12. Miscellaneous

Should singular provisions of these general terms and conditions be or become completely or partly invalid, this does not affect the validity of the remaining conditions. Instead, the invalid provision shall be replaced by that which comes closest to the intended purpose, respectively the definition from the current legal text.

No collateral agreements have been made. Supplements to the contract shall only become effective if they are confirmed in writing.

The customer may only assign his rights under a business relationship with the company upon the company’s written approval. The customer may only offset against a purchase price claim with approved or legally enforceable counterclaims.

As far as legally admissible, the place of jurisdiction shall be at the company’s head office in the Federal Republic of Germany.

German law shall apply.

13. Right of Cancellation

You can cancel your contractual declaration within 14 days (30 days in our online shop) without a written statement of a reason (Letter, fax, Email) or if you send the good back before the stated period. The period begins upon receipt of this notification in writing, but not before receipt of the goods by the receiver (in the recurring supply of similar goods before receipt of the first partial delivery) and nor before we have fulfilled our obligations to provide information as defined in Article246 § 2 in conjunction with § 1 (1) and (2) of the Introductory Act to the Civil Code ("EGBGB") as well as our duties under § 312e (1) sentence 1 of the BGB in conjunction with Article 246 § 3 EGBGB. Your right is ensured if return of the goods takes place during the time period. The cancellation should be directed to:

Silvercreations Software AG

Campusallee 9928

D-55768 Hoppstädten-Weiersbach

+49 6782 172799

sales@silvercreations.de

14. Consequences of Revocation

In the event of effective revocation, the goods and/or services to be exchanged between the parties shall be returned and any benefits realised, such as by using the item, shall be returned to the vendor. If the item received cannot be returned, or only in parts or in a deteriorated condition, appropriate compensation shall be paid instead. This shall not apply to the permitted use of items if the deterioration of the item is solely due to its examination, such as you would have been able to perform in a shop, for example. Apart from that, the obligation to provide compensation for deterioration caused by the proper use of the item can be avoided by not using the item like property and by refraining from doing anything that would reduce the item’s value.

The seller always bears the cost of shipping and fundamentally the costs of the return shipment.

You are obliged to bear the costs of the return shipment, if the merchandise delivered corresponds to the merchandise ordered, and if the price of the merchandise to be sent back does not exceed an amount of 40€ or if, where the price is higher, you have at the date of the revocation not yet rendered consideration or given a part payment. Items which are not able to be sent by delivery shall be collected from you. The obligation for a refund of payments needs to be fulfilled within 30 days. The period begins with the dispatch of your declaration of revocation or item, and for us with its receival.

15. Privacy Policy

Thank you for your interest in our online site. The protectection of your personal information is very important to us. Please read the following about the protection of your data. Usually personal information is not required for the general use of this website. However, in order to provide the requred services to you regarding our products some personal information is required. This is used to send you relevent information and ordering products from us and the response to induvidual inquiries. When you instruct us to deliver services or make a delivery, we maintain and save your personal data to the extent that it is only used for the purpose of providing these services or if it is essential to the completion of a contract. Therefore it may be required that your personal information is passed on and used by other companies to fulfill these services. These are for example transport companies or other service providers. Please note, that any personal information that you give in publicly accessible sections such as guest books for example, can be seen and used by other users. If you have registered for our newsletter with your Email address, we will use your Email address to also inform you about our products until you cancel your registration. We take note of the specific purpose data usage guidelines, process and save your personal data information only for the purposes for which you have given it to us. The passing on of your personal information to third parties will not be done, without your express permission, so long as this is not essential to the accomplishment of services or contracts. Also the conveyance to justifiable state institutions and authorities follows only with regard to fulfillment of legal obligations. All care is taken in the protection of your privacy and your information is stored by us securely with the most up-to-date technology against viruses and other threats. In the very unlikely event that information is lost or stolen by deliberate outside influences, SilverCreations cannon be held liable.